Law360 Canada ( March 10, 2021, 6:20 AM EST) -- Appeal by the plaintiff, McCain, from a Federal Court decision allowing in part its appeal from a Prothonotary’s order allowing the respondent to amend its defence and counterclaim in a patent infringement action. Appeal by Elea from the Federal Court’s decision refusing to strike the third-party claim. McCain alleged that the respondent Simplot’s use of a system that used a pulsed electric field (PEF) to reduce the resistance of frozen fruits and vegetables to cutting after they were cooked infringed McCain’s Patent. The Prothonotary granted Simplot leave to amend its statement of defence and counterclaim to introduce allegations that Simplot benefited from an implicit licence or from McCain’s alleged acquiescence, and to commence a third-party claim against Elea, the supplier of the PEF systems used by Simplot in the alleged infringement. Elea also sold PEF to McCain. Elea alleged McCain entered into this transaction with Elea knowing that it was also selling its PEF systems to third parties. The Federal Court limited the allegations in the defence and counterclaim but refused to strike the implicit licence and acquiescence allegations. McCain argued the implicit licence defence was not supported by the law on implied licences and that the factual allegations were inadequate and that Simplot failed to plead certain necessary elements of an acquiescence defence, including facts that suggested that Elea was infringing the Patent, that McCain was aware of Elea’s mistaken belief, and that McCain did anything to encourage Elea to continue to infringe the Patent to its own detriment. Both appellants wanted the third-party claim struck as it was essentially based on a commercial contract and was therefore outside the jurisdiction of the Federal Court....